United States v. Roach

JOSEPHSON and BURGESS, Judges

(concurring in part and dissenting in part):

We concur with affirmance of the guilty finding for violation of Article 110, Uniform Code of Military Justice. We dissent from the disapproval of the guilty finding for violation of Article 90, Uniform Code of Military Justice, and the reassessment of the sentence.

This case well illustrates the type of problem which has led Judge Cox of the U.S. Court of Military Appeals to express reservations about making substantive law based on a guilty-plea record. See e.g. United States v. Byrd, 24 M.J. 286, 293 (C.M.A.1987) (Cox, Judge, concurring in the result). Without the benefit of a thorough trial of the issues, including the facts which elucidate legal questions and help to place them into focus, much of what an appellate court says is necessarily hypothetical and academic. Nevertheless, such speculation seems necessary to illustrate why we would not disturb the findings and sentence in this case.

Our brothers invite a re-examination, by appropriate authorities, of the maximum punishment for a violation of Article 110 (hazarding a vessel). By implying that the offense of willfully hazarding a vessel may be anachronistic, and by seemingly downplaying the seriousness of that offense, this Court may be doing a disservice to the men and women serving aboard our vessels, undergoing grueling operational schedules, and frequently finding themselves “in harms way”. Setting a shipboard fire, even pierside, is not analogous to arson of a building ashore and ignores the many distinctions, only a few of which we mention below, between the two. Shoreside buildings with living accommodations do not ordinarily contain the flammables, chemicals and explosives found aboard a vessel which increase significantly the potential danger to the vessel, its crew, and surrounding vessels, people, facilities, and the environment. Shipboard fires are fought primarily by the ship’s crew. Accessibility to and exit from compartments is restricted. Unventilated smoke can be a high hazard. At night, in-port, the number of personnel who can timely respond is usually limited. The loss of or damage to a building ashore due to a fire does not have the same impact on national defense, military preparedness and mission performance as would the loss of or damage to a U.S. warship due to fire. Should the maximum punishment for hazarding a vessel be re-examined, we -suggest that such distinctions and the unique nature of U.S. warships call for a severe maximum sanction.

The majority have difficulty reconciling the maximum imposable sentence for the offense of hazarding a vessel with the results of Seaman Roach’s efforts. That Seaman Roach subsequently had second thoughts and that a major conflagration *873with significant personnel casualties was avoided is certainly fortunate. Yet it could easily have been otherwise. Numerous factors could have prevented early detection or successful extinguishment of the fire. One need not be particularly imaginative to identify such factors.

With respect to the “order” offense much attention, in our view misplaced, is focused on perceived command shortcomings. Recognizing that an order to refrain from drinking alcohol may be lawful, the proper focus, it seems to us, is on the military purpose of such an order, rather-than parental conversations or the amount of recurrent treatment, rehabilitation and attention appellant may or may not have received. Except insofar as matters of leadership, management, or the priorities of command directly impact on military justice, e.g. unlawful command influence, we think it inappropriate to address such matters in this forum. Additionally, the limited focus on such collateral matters in records of trial precludes a full consideration and fair assessment of command performance in the abstract.

An order from a superior commissioned officer requiring the performance of a military duty or act may be inferred to be lawful. The inference of lawfulness does not apply to a patently illegal order. Para. 14c(2)(a)(i), Part IV, Manual for Courts-Martial, 1984. Three considerations concerning the lawfulness of an order may be deduced from this explanation in the Manual for Courts-Martial. First, a patently illegal order is obviously unlawful. Second, if the order requires the performance of a military duty or act it may be inferred to be lawful. Third, an order which does not require the performance of a military duty or act is not inferred to be lawful. Which is not to say that such an order necessarily is unlawful. However, to be lawful, an order at least “must relate to military duty.” (Emphasis supplied). Para. 14c(2)(a)(iii), Part IV, Manual for Courts-Martial, 1984.

An order to refrain from consuming alcoholic beverages is not patently illegal. The example of a patently illegal order given in the Manual for Courts-Martial is an order that directs the commission of a crime. Clearly, the order in question does not direct the commission of a crime. Prior opinions of military courts and boards dealing with orders to abstain from drinking alcohol establish that such orders are not patently illegal. See Judge Barry’s opinion.

Appellant also relies on United States v. Green, 22 M.J. 711 (A.C.M.R.1986) for the proposition that, regardless of the purpose for the order, an order not to drink alcohol is unlawful. In Green, supra, a regulation prohibiting soldiers from having any alcohol in their systems, or on their breath, during duty hours was found to be invalid and unenforceable because it was arbitrary, unreasonable and standardless. Clearly, the broad reach of the regulation in Green, supra is distinguishable from the order in the instant case, which was time and location specific. Green does not stand for the broad proposition appellant asserts.

The Manual for Courts-Martial provides:

“Relationship to military duty. The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs.”

Paragraph 14c(2)(a)(iii), Part IV, Manual for Courts-Martial, 1984.

Undoubtedly, an order “not to consume alcohol” interferes with private rights or personal affairs. Nevertheless, it may still be lawful if it serves a valid military purpose, such as one or more of those stated in the first sentence of the above-quoted provision of the Manual for Courts-Martial.

Appellant could have been restricted during the Key West in-port as a result of his underway non-judicial punishment. Instead, his Commanding Officer suspended the restriction awarded and chose the less severe route of permitting liberty subject to the abstention order. Appellant chose *874not to contest the lawfulness of the order and pled guilty to the charge. At this point attention turns to the “providence” inquiry. While it may be a close call, we would find the inquiry adequate in this regard.

In this “guilty plea” case the record of trial is, obviously, less comprehensive respecting the military concerns and factual background surrounding the issuance of the order than would be expected had the issue been contested and fleshed-out at the trial level.

The military judge questioned appellant concerning what justification the latter saw in the order. Appellant’s responses, set out in Judge Barry’s opinion, indicate appellant’s recognition that compliance with the order would lessen the likelihood of a recurrence of his earlier problem with civil authorities in Key West. Appellant also recognized that issuance of that order was not merely a matter of solicitude for his personal well-being. While articulating the supposition that the command may have been concerned about the vessel’s reputation in Key West, appellant acknowledged that the purpose of the order “... could be a case for the Coast Guard.” We think it is readily apparent that this order was a “case for the Coast Guard” and related to military duty. We believe that this was also clear to the military judge. In addition to the responses set out in Judge Barry’s opinion appellant stated, “He also did it for the safety of the ship. I’m a ... qualified watch-stander, I’m a helmsman, a look-out, a qualified messenger____” (R. 49). This recitation of some of his shipboard responsibilities points to the nexus between this limited order and an underlying military purpose. Were this individual to have one drink, he would probably have more. Appellant’s previous experience in Key West provided the foundation for a valid expectation that if he drank he was likely to engage in conduct adversely affecting the ship, its mission, its crew, or his ability to perform his duties aboard the ship. Nor can we say that the commanding officer should have anticipated that appellant would drink, despite the order. Appellant, himself, stated he could have abstained from drinking and had done so before (R. 46). With appellant’s acknowledgment that the order was not merely for his own benefit, strengthened by defense counsel’s representation to the military judge on two occasions (R. 23, 49) that lawfulness of the order was not an issue, we see no need for the military judge to have pursued the obvious by further questioning of appellant in this regard.

It also seems apparent to us that the government, if put to the test, would have easily established a valid military purpose underlying this order, to this individual, in the circumstances of this case. To mention just a few possibilities we refer to appellant’s previous problem in Key West, the nature of the CGC DEPENDABLE’S patrol, the brevity and nature of the overnight in-port in Key West, the importance of avoiding disruption to resumption of the patrol, the nature of appellant’s duties aboard the vessel — both normal duties and emergency response duties in accordance with his Watch, Quarter and Station Bill assignments, the consequences of his absence from the vessel, and the impact on others who would have to undertake additional duties in his absence. Such factors and others might have been fully developed, in toto or in various combinations, to establish a “valid military purpose” if the charge had been contested.

The mere “possibility” of a defense does not require rejection of a guilty plea. “In many criminal cases, the tactical possibility of raising a defense exists even though the accused and his counsel know that the contention has little substance ...” United States v. Logan, 22 U.S.C.M.A. 349, 351, 47 C.M.R. 1, 3 (1973). Appellant did not raise matters in “substantial conflict” with his plea. Rejecting that plea would be a “hollow gesture”, Id., in the circumstances of this case. We believe the issue of the possible defense of unlawfulness of the order was adequately resolved. Additionally, it would ignore reality not to recognize that the military judge, by virtue of his general familiarity with the nature of Coast Guard operations, was aware of the military and operational environment applicable to the CGC DEPENDABLE and its *875crew during this brief in-port period, Along with defense counsel’s representations, appellant’s acknowledgements, and the absence of information raising a substantial conflict with appellant’s plea, this general awareness contributes to the reasonableness of the acceptance of the guilty plea.

We would affirm the findings and sentence, as approved below. Even absent the “order” offense, we would affirm the sentence due to the gravity of appellant’s con-duet in hazarding the vessel,